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HON. ¥. P. FESSENDEN, OF MAINE, 



THE RESOLUTION REUTING TO THE ADMISSION OF SENATORS AND REPRESENTATIVES 
FROM THE CONFEDERATE STATES; 



DELIVERED 



IN THE SENATE OF THE UNITED STATES, FEBRUARY 23, 1866. 




WASHINGTON: 
PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1866. 



<'> Vv-^O 



REPRESENTATION FROM CONFEDERATE STATES.. 



The Senate having under consideration the resolu- 
tion relating to the admission of Senators and Rep- 
resentatives from the confederate States — 

Mr. FESSENDENsaid: 

Mr. President: I have already, in what I 
stated on Wednesday and this morning in the 
preliminary discussion, snfiiciently indicated to 
the Senate my opinion of the importance of the 
resolntion before the body; but as it has just 
been laid upon our tables in printed form I 
ask that it be read before I j^roceed. 

The Secretary read the resolution, as fol- 
lows : 

liesolvedbj/ the Uouseof Reprenentativcs, (the Senate 
concurrinpr.) That in order to close agitation upon a 
question which seems likely to disturb the action of 
the Government, as well as to quiet the uncertainty 
which is asitating themindsofthopcopleofthe eleven 
States which have been declared to be in insurrection, 
no Senator or Representative shall bo admitted into 
either branch of Congress from any of said States un- 
til Congress shall have declared such State entitled 
to such representation. 

Mr. FESSENDEN. It was averred by the 
Senator from Ohio that we had previously acted 
upon resolutions similar in their character. I 
am not aware that we have. The resolution, 
it will be perceived, is nothing more nor less 
than a legislative assertion by both Houses of 
Congress that they will not proceed to act upon 
the credentials of members from any of the 
States which lately constituted the so-called 
confederate States until they have previously 
passed a law applicable to the condition of the 
<States themselves. This, if 3-ou will allow me 
to say so, is in exact accordance with what Con- 
gress has indicated as its intention heretofore. 
It was indicated in the last Congress, and it Avas 
indicated in a resolution which came directly 
from the Committee on the Judiciary, of which 
the honorable Senator from Maryland [Mr. 
JoHXSOx] wasamember, and, asl aminformed, 
with his concurrence, not as applicable to all 
the States, but as applicable to one of the 
States. It is before me in a few words, and I will 
read it. At the close of the report that was 
made to the Senate on the 18th of February to 
accompany joint resolution S. No. 117, on the 
subject of the credentials of members claiming 



seats from Louisiana, the last paragraph, which 
I will read, is : 

"The persons in possession of the local authorities 
of Louisiana having rebelled against the authority 
of the United States, and her inhabitants having been 
declared to he in a state of insurrection in pursuance 
of a law passed by the two Houses of Congress, your 
coramifteo deem it improper for this body to admitto 
seats Senators from Louisiana, till by some joint ac- 
tion of both Houses there shall be some recognition 
of an existing State government, acting in harmony 
i with the Governmentof the United States andrecog- 
uizing its authority." 

Mr. JOHNSON. Is that the report of the 
18th of February, 1865? 

Mr. FESSENDEN. Yes, sir. Now, there 
is the principle laid down in so many words, 
and agreed to, as I understand, specifically by 
the honorable Senator from Maryland, whose 
authority we all acknowledge, that inasmuch 
as the State of Louisiana had been declared to 
be in a state of rebellion, and intercourse with 
it had been suspended by a law of Congress, 
therefore Congress could not properly admit 
members from that State, except in pursuance 
of a law of Congress providing for her peculiar 
condition — I do not pretend to repeat the ex- 
act language. When that resolution was intro- 
duced into Congress, did it occasion any dis- 
cussion upon that principle or the propriety of 
its application ? Was there any objection made 
to it here ? Was there any objection made any- 
where? Did not everybody recognize the pro- 
priety of that exact expression of opinion as 
applied to the proposition to admit Senators 
and Representatives from such a State ? I was 
not here at the time, but I am informed that 
there was no discussion upon that particular 
subject, and no fault was found with the partic- 
ular course that was thus indicated, so far, at 
least, as this principle was concerned. 

How does it happen, then, that when a similar 
resolution is proposed, one applicable to other 
States that have been precisely in the like con- 
dition, there seems to be so much sensitiveness 
in the minds of gentlemen ? How can it be 
accounted for that what was thought to be so 
proper as applicable to the State of Louisiana 
should be so improper as applicable to these 
other States? It is for gentlemen to answer. 



Let us look a little further, and see what has 
occurred since that time, because I feel some- 
what sensitive on this subject. Charges have 
l>een made with rcfereuce to the committee of 
which 1 have the honor to be a member that 
have somewhat affected my view of my own 
condition, and I feel compelled not only to 
vindicate that committee, but to vindicate the 
action of Congress with reference to it. Before 
proceeding further, although exceedingly averse 
to appealing to newspapers, yet, as 1 learn i'rom 
all quarters that what I send to the Chair is a 
correct statement of what was said on a recent 
occasion. I will ask the Secretary to read an 
extract which I have marked from a report in 
the Morning Chronicle of a speech made by 
the President of the United States to his fellow- 
citizens. 

Tiic Secretary read as follows : 

"But, my countrymen, after having passed through 
the rebellion, and given -such evidence as I have- 
though men croak a great deal about it now [laugh- 
ter]— when I look back through the battle-fields and 
see many of these brave men, in whose company I 
wa«, in parts of the rebellion where it was most dif- 
ficult and doubtful to be found, before the smoke of 
battle has scarcely passed away, before the blood shed 
hiis .scarcely congealed, what do we find ? The rebel- 
lion is put down by the strong arm of the Government 
in the field; but is that the only way in which we can 
have rebellion? They struggled for the breaking up 
of your Government ; but before they are scarcely out 
of the battle-field, and before our brave men have 
scarcely returned to their homes, to renew the ties of 
afi'ection and love, we find ourselves almost in the 
midst of another rebellion. [Applause.] Thewarto 
suppress one rebellion was to prevent the separation 
of the .States, to prevent them from flying off, and 
thereby changing the character of the Government 
and weakening its power. Now what is the struggle? 
There is an attempt to concentrate the power of the 
Government in the hands of the few, and thereby 
bring about a consolidation which is equally danger- 
ous and objectionable with separation. [Enthusiastic 
applause] We find that powers are assumed and at- 
tempted to be exercised of a most extraordinary char- 
acter. What are they? 

"We find that Governments can be revolutionized, 
can be changed, without going into the battle-field. 
Sometimes revolutions, the most disastrous to the 
people, are effected without the shedding of blood. 
The substance of government may bo taken away, 
while the form and shadow is still adhered to. Now, 
what arc the attempts? What is being proposed? 
AVe find that, in fact, by an irresponsible, central 
directory, nearly all the powers of Government are 
assumed, without even consulting the legislative or 
e.Kecutive departments of Government. Yes! and by 
resolution reported by a committee, upon whom all 
the legislative power of the Government has been 
eonforri-d, that great principle in the Constitution, 
which authorizes and empowers each branch of the 
legislative department, the Senate and House of 
Eepresentatives, to be the judges of the election and 
qualification of its own members, has been virtually 
taken away from those departments of Government 
and conferred upon a committee, who must report 
before they can act un<lerlho Constitution and allow 
members duly elci-ted to take theirscats. Bythisrulc 
thry assume that there must bo laws passed, that there 
mu-it be recognition in respect to a State in the Union, 
with all its practical relations rcstijred, before the rc- 
succtive Houses of Congress, luulcr the Constitution, 
shall judge of the election and qualification of its own 
uiembiTS. What position is that? You have been 
struggling for four years to put down the rebellion. 
You denied in the beginning of the struggle that any 
State had the right to go out; you said that they had 
neither right nor power. The i.ssuo has been made, 
and it has been settled that a State has neither the 
right nor the pow<T to go out of the Union; and when 
you have settled that by the executive and military 
power of the (ioveriimenl and by the public judg- 
ment, you turn round and assume tluit they are out, 
and shall not come in. [Laughter and cheers.] 



" I am free to say to you, as your Executive, that 
I am not prepared to take any such position. I said 
in the Senate, in the very inception of the rebellion, 
that States had no right to go out, and that they had 
no power to go out. That question has been settled, 
and 1 cannot turn round now and give the lie direct 
to all I profess to have done in the last five years. 
[Laughter and applause.] I can do no such thing. I 
say that when they comply with the Constitution, 
when they have given sufficient evidence of their 
loyalty, and that they can be trusted, when they yield 
obedience to the law, I say extend to them the right 
hand of fellowship, and let peace and Union be re- 
stored. [Loud cheers.]" 

Mr. FESSENDEN. It will be noticed, Tilr. 
President, that in the extract which has been 
read there are very serious charges made. One 
is that there is an effort being made to con- 
centrate all power in a few, and that that power 
is lodged in the hands of a sort of central com- 
mittee, and the words which immediately fol- 
low furnish a sufficient indication of what the 
President meant. I think the President of the 
United States could hardly have considered 
with care the nature of the resolution under 
which we have been acting as a committee of 
this body ; he could hardly have looked at its 
history, and hardly have understood its mean- 
ing. Let me read that resolution and state its 
history, for it is very singular that he should 
charge that all the authority of deciding upon 
the credentials of members of the House of 
Representatives and of the Senate has been 
taken from the House and the Senate and 
referred to this committee. The resolution, 
as it came from the House of Representatives 
originally, was iu these words : 

"Thatajoint committee of fifteen members shall 
be appointed, nine of whom shall be members of the 
House and six members of the Senate, who shall in- 
quire into the condition of the States which formed 
the so-called confederate States of America, and re- 
port whether they, or any of them, are entitled to be 
represented in either House of Congress, with leave 
to report at any time, by bill or otherwise." 

And then followed the words which I will 
now read : 

"And until such report shall have been made, and 
finally acted on by Congress, no member shall be re- 
ceived into either House from any of the said so-called 
confederate States; and all papers relating to the rep- 
resentation of said States shall be referred to the said 
committee without debate." 

That was the original resolution. When it 
came to be considered in the Senate it was not 
deemed very desirable at that time to interfere 
with those questions which might bo said to 
belong exclusively to each House, and the last 
part of the resolution was stricken out, so that 
the resolution as it finally passed stood in this 
way : 

"That a joint committee of fifteen members shall 
be appointed, nine of whom shall bo members of the 
House and six members of the Senate, who shiill in- 
quire into the condition of the States which formed 
tuo so-called confederate States of America, and re- 
port whether they, or any of them, are entitled to bQ( 
represented in either House of Congress, with leave 
to report by bill or otherwise." 

What was that? Simjily the apjiointment 
of a joint committee, in this unexamiih'd condi- 
tion oi' tlie country, with a war of four years (in 
which eleven States liad been engaged against 
the United States) just clo.sed, after all the ex- 
jxmditure of blood and treasure tliat had been 
made in the countrv, at the first meeting of 



Congress which occurred after actual hostili- 
ties in the field had ceased — for what purpose? 
To inquire into the condition of those States and 
report wliotlier they were entitled to represen- 
tation. That simple provision for acquiring 
information in order to enable the House and 
the Senate to judge understandingly upon this 
important question affecting themselves has 
been represented by gentlemen and by news- 
papers as assuming authority which did not 
belong to Congress. I have nothing to say in 
this connection with reference to the Presi- 
dent. I am speaking now of the complaints 
that were made of that resolution, a simple res- 
olution to inquire into the condition of those 
States and report whether Representatives and 
Senators could be admitted from them. •Sir, 
in this were we doing anything moi-e than our 
duty? Was it not advisable? It was not a 
single question relating, as we understood it, 
to the credentials of members. It was believed 
that at the ve^y foundation of the whole ques- 
tion of the admission of members lay this great 
point, whether the condition of those States 
was such as to render the admission of those 
members safe. I have had this extract from 
the President's speech read simply to show what 
everybody must admit with regard to it. The 
last paragraph of the extract that I sent to the 
Chair and had read, is this : 

" I am free to say to you, as your Executive, that I 
am not prepared to take any such position. I said 
in the Senate in the very inception of the rebellion 
that States had no right to go out and that they had 
no power to go out. That question has been settled, 
and I cannot turn around now and give theliedirect 
to all I profess to have done in the last five years. I 
can do no such thing. I say that when they comply 
with the Constitution, when they have given suffi- 
cient evidence of their loyalty and that they can be 
trusted, when they yield obedience to the law, I say 
extend to them the right hand of fellowship, and let 
peace and union be restored." 

So say I, and so say all. When they do that 
let these consequences follow. There is no 
difference on that point. The President him- 
self, instead of saying anything different from 
us, says when they have complied with these 
conditions then they ought to be admitted. He 
himself in his speech makes that a preliminary 
to examining the question a£ credentials to see 
whether men come here jSoperly accredited. 
Lest gentlemen on the other side should have 
failed to notice this sentence, let me read it 
again. It is peculiarly expressive: 

"I say that when they comply with the Constitu- 
tion, when they have given sufficient evidence of 
their loyalty and that they can be trusted, when 
they yield obedience to the law, I say extend to them 
the right hand of fellowship, and let peace and union 
be restored." 

That, it seems, is a matter into which some- 
body has a right to inquire, i should like to 
know if the Congress of the United States 
have not a right to ask these very questions 
and be satisfied upon them before they admit 
men as Senators and Representatives in the 
several bodies which constitute Congress. If 
Congress have a right to inquire, (and I agree 
with the President entirely on, the subject,) 
what have we done more than to inquire? 
When Congress appointed this committee with 
power to examine into the condition (for that 



is all there was of it) of these so-called con- 
federate States and report whether they were 
in a fit condition to be represented by Sena- 
tors and Representatives, what did we do more 
than simply to endeavor to carry out precisely 
f»hat the President has laid down in his speech 
as preliminary to the admission of Senators 
and Representatives? I state this in order 
that th(! country may understand what all this 
noise has been about in reference to the ap- 
pointment of this committee. 

But the President undertakes to say that 
legislative power has been granted to this com- 
mittee : that the power of legislation which Con- 
gress possesses — he calls it "the power of legis- 
lation" — over the question of the admission of 
Senators and Representatives has been passed 
out of the hands of Congress and given to a 
central power. 

Mr. RAMSEY. "Central" directory." 

Mr. FESSENDEN. _ A central directory, 
which chooses to exercise this power. Sir, is 
this committee of fifteen anything more than 
the servant of Congress? Is any committee, 
either joint or several, which is appointed, any- 
thing more than the mere servant of Congress? 
Can any member of it, or the whole of it, set 
up its will for a single day or a single hour or 
a single moment against the will of the body 
which constituted it? We were appointed for 
a special purpose, to make inquiries, and report 
to Congress the result of our inquiries ; and for 
what reason? What was the great reason? Sim- 
ply that neither branch, acting without suf- 
ficient information, might take a course from 
which the other lu-anch would differ, and thus 
bring about a collision between the two bodies 
which constitute the Congress. Under those 
circumstances, is it quite fair to designate the 
committee of fifteen as a central directory, as 
a power assuming to judge and to decide ques- 
tions which belong to the bodies which the com- 
mittee represents? Is it quite fair to desig- 
nate it as a central power sitting here with a 
view to set up the government of a few against 
the government of the many ? I can understand 
the allusion in no other way ; and if any gentle- 
man can place a different construction upon it, 
I should like to have him do so. I am unwill- 
ing myself, individually, to rest under such an 
imputation. I have the honor to be one of that 
committee. I never understood myself as any- 
thing but the servant of Congress, or of the 
body which sent me there, to endeavor to ob- 
tain information and to come to a conclusion 
upon which the body might act understand- 
ingly; and that we have not come to a conclu- 
sion yet, is only a proof that the question is a 
much larger one than gentlemen might have sup- 
posed, and involves more consideration and 
more examination than might possibly have 
been apparent to those who looked only upon 
the surface, and judged only from what they 
could gather from common report. 

If the Executive — and I mean to speak of 
the President with respect, because I entertain 
for him respect — has an idea thai the several 
points which he has suggested are prelimina- 
ries to the admission of Senators and Repre- 



6 



sentatives from these States, the question arises, 
who is to exercise that power of judgment? 
Does it belong to us, if a Senator presents 
himself hero, to ascertain in the first place if 
those conditions have been complied with on 
the part of these States, or does it belong to 
him? 'I'he honorable Senator from AVisconsin 
[Mr. D001.ITTI.K] undertakes to find fault with 
something that I think he will find 1 did not 
say. Probably he anticipated that I should 
sav it. 

Mr. DOOLITTLE. I thought you did say it. 

Mr. FESSKXDEN. It may be ; but if so, 
I am very much mistaken. If I made a remark 
of that kind I have not misconstrued the Presi- 
dent ; and that brings me to a short considera- 
tion of the veto message. I will say in regard 
to that message, that 1 had no very particular 
attachment to the bill which was thus vetoed. 
In some particulars it did not meet my ap- 
proval. I think some of the reasons which the 
President gives for not approving it are such 
as would commend themselves to public con- 
sideration. It is a bill upon the provisions of 
which there might well be a very considerable 
difference of opinion. I yielded, however, the 
objections 1 hud, and one of them was very 
much like that stated by ray honorable friend 
from West Virginia [Mr. Wii-t>ey] to the sixth 
section of the bill, because I thought on con- 
sideration that the power did exist, and it was 
especially necessary to exercise it, and the bill 
therefore received my vote. If the President 
had confined himself in the objections which 
he stated to a criticism of the bill itself, it is 
very possible that I might have beeii quite 
willing to waive my own feelings and opinions 
in regard to the bill as it passed, and to sustain 
his veto. But on looking at the veto message, 
and the reasons given in it, it struck me, that 
after passing from the consideration of the pro- 
visions of the bill which was sent to him, he 
gave other reasons which rendered it impossi- 
ble, in my judgment, for any member of this 
Senate with a due respect tohimself and to the 
rights of the Senate and of Congress, to vote 
otherwise than to sustain the bill they had sent 
to him ; because a vote in the negative on the 
question of its passage might seem to indorse 
all his opinions whatever they may be, as ex- 
pressed in the veto message. I considered it 
so. At any rate, I did not mean to put myself 
in the position of indorsing, or being supposed 
for a single instant to give my assent to, the clos- 
ing parts of the veto message. What do I un- 
derstand by the closing parts of that message? 
Simply that, in the judgment of the President, 
Congress, as at present organized, has no right 
to pass any bill affecting the interests of the late 
confederate States while they are not repre- 
sented in Congress. Docs the Senator from 
Wisconsin say that that opinion is not definitely 
expresseil ? 

Mr. DOOLITTLE. Read the message. I 
do not understand that to be the effect of what 
is said by the President. 

Mr. l-i":SSENDE\. i understand that to 
i;e the effect of it. I cannot undei'stand it 
Otherwise. I wish I was mistaken. I do not 



say that he asserts we have no legal right to 
do it, but that we have no moral right. If the 
Senate will excuse me, I will read that portion 
of the message: 

"I cannot but aiUl another very grave objection to 
this bill. Tlie Constitution imperatively deelaros, in 
connection with taxation, that each State shall have 
at least one ItcprcseiUa-tive, and tixcs the rule for the 
number to which, in liiture times, each State shall be 
entitled. It also ju'o vidcs that the Senate otthe United 
States shall be composed of two Senators from each 
State; and adds, with peculiar force, "that no State, 
without its consent, shall bedeprivedof its equal suf- 
frage in the Senate.' Theoriginal actwasncccssarily 
passed in the absence of the States chiefly to be af- 
fected, because their people were then contumaciously 
engaged in the rebellion. Now the case is changed, 
and some, at least, of those States are attending Con- 
gress by loyal representatives, soliciting the ,allow- 
ance of the constitutional right of representation. At 
the tifce, however, of the consideration and the pass- 
ing of this bill, there was no Senator or Ileprcsenta- 
tive in Congress from the eleven States which are to 
be mainly aflected by its provisions. The very fact 
that reports were and are made against the good dis- 
position of the people of that portion of the country 
is an additional reason why they need, and should 
have, representatives of their own in Congress to 
explain their condition, reply to accusations, and 
assist, by their local knowledge, in the perfecting ot 
measures immediately affecting themselves. AVhile 
the liberty of deliberation would then be free, and 
Congress would have full power to decide according 
to its judgment, there could be no objection urged 
that the States most interested had not been permit- 
ted to be heard. The principle is firmly fixed in the 
minds of the American people, that there should be 
no taxation without representation. Great burdens 
have now to be borne by all the country, and we may 
best demand, that they shall be borne without mur- 
mur when they are voted by a majority of the repre- 
sentatives of all the people." 

I do not contend that he says in so many 
words that we have no legal right to pass a 
bill ; but the objection that he makes goes to 
the foundation, that no bill affecting the rights 
or the interests of the so-called confederate 
States shall be passed by Congress until Rep- 
resentatives and Senators from those States are 
permitted to take part in our deliberations. It 
follows necessarily, if that be a correct position, 
that in relation to those States which have been 
recently in rebellion, which have fought for four 
years against the Government and endeavored 
to overturn it, we can pass no law affecting 
them, or restraining them, or providing any- 
thing, no matter what, with reference to a 
change of the CoWstitution or anything else, 
until wc admit their Representatives and their 
Senators upon the floor of Congress. I under- 
stand that to be the necessary inference. The 
President argues it; he states it argumenta- 
tively, to be sure, but then that is the inevi- 
table result, that our moral right to legislate 
upon anything which affects their interests is 
gone; and particularly, that we have no power 
to pass any law or any rule or make any con- 
dition with regard to them, but that we are 
bound to take them just as they are, upon their 
say so ; and when they are here, acting with 
us, wc may proceed to legislate. I decline to 
give mv assent to any such proposition. 

Mr. DOOLITTLE. I certainly do not wish 
to Interrnptthe honorable Senator in thecourse 
of his argument, but 

Mr. FESSl'LXDEX. It is no interrujition at 
all. 1 am perfectly willing to hear anything the 
Senator desires to say. 



Mr. DOOLITTLE. I only rise now to state 
^hat I understand the force of that portion of 
the message to bo a discussion of the propriety, 
not the power, of legislation. It is a question 
of propriety whether it would not be bettor, if 
loyal representatives are here, and the States 
are fit to be represented, that we should have 
them here and consult with them when legislat- 
ing for their States. 

Mr. FESSENDEN. But he makes that a 
ground for his veto ; and if he can veto one bill 
upon that ground, he will and must, for the sake 
of consistency, veto every other bill we pass 
on that subject. "Why is this in the message? 
What necessity was there for it in this message ? 
The gentleman talks about the propriety of the 
thing. When the propriety of the thing is made 
a specific ground for refusing to sign a bill, tliat 
sense of propriety applies to every other bill 
that may atfect the interests of those States ; 
does it not? 

Mr. DOOLITTLE. I do not understand that 
to be stated as aground of the veto at all. You 
ask why it is there. He states it as an impro- 
priety, in his iudscment. 

Mr. FESS'ENDEX. '•! cannot but add 
another very grave objection to this bill." Is 
not that a ground of objection to the bill? 
That is the way the paragraph commences. 
If the President had given us a little friendly 
advice in relation to that matter, disconnected 
entirely with a statement of it as an objection 
to the measure under consideration, nobody 
would have received it with better nature and 
better grace than myself. I might not have 
acceded to his reasons, but I would have re- 
ceived them with all respect, and perhaps on 
some matters we should agree very much better 
than we would a])pear to do when he stands in 
the position of President vetoing the bill, and 
I in the position of a Senator commenting upon 
it. But my objection to it was just there ; he 
makes the fact that Senators and Representa- 
tives have not been admitted from those States 
an objection to this bill ; and while it stands 
so it is an objection to any bill, no matter 
what, that we may choose to pass, or anything 
that vv'e may choose to do which by any possi- 
bility may affect the interests of those States. 
The gentleman cannot get rid of it or creep out 
of it. 

Striking me with the force that this position 
of the veto message did, whatever I might think 
of the President's other objections to the bill, 
and however I might treat them, that is one 
ground which rendered it impossible for me to 
yield my assent, by agreeing to waive my own 
opinions in reference to the measure itself, and 
to support his, with aview to get something ; be- 
cause you see that goes to the very foundation. 
No bill, the Senate will perceive, touching a 
Freedmen's Bureau, no bill touching any other 
interest connected with the colored people, no 
bill touching anything that may affect the south- 
ern States, can in any way pass upon ground like 
that. 

Let us go a little further, sir. I received the 
impression that the President really undertook 
to limit what I understood to be the powers of 



Congress in relation to this matter, and to show 
tliat I will read a little more of the message. 
After speaking on the subject of introducing 
legislation before admitting Senators and Rep- 
resentatives from these States into Congress, 
he says : 

"I would not interfere with the unquestionable 
right of ConRress to judge, each llou.^o for itself, 'of 
the elections, returns, and Qualifications of its own 
member.'--.' But that authority cannot be construed 
as including the right to shut out, in time of peace, 
any •'^t.itc fVdm the representation to which it is on- 
titlo<l liy the Constitution." 

In his speech yesterday, he said : 
"I say that when they comply with the Constitu- 
tion, when thoy have given sufficient evidence of their 
loyalty and that they can be trusted, when they yield 
obcdicnie to the law, I say extend to them tile right 
hand of fellowship, and let peace and union be re- 
stored." 

He is talking there about representation. Is 
it not a plain, distinct, indisputable inference 
from what I have read from the veto message, 
that we cannot judge upon any question except 
the simple question of the elections, returns, 
and qualifications of our own members ? Let 
us hear what he goes on to say in that mes- 
sage: 

"At present all the people of eleven States arc 
excluded — those who were most faithful during the 
war not less than others. The State of Tennessee, 
for instance, whose authorities engaged in rebellion, 
was restored to all her constitutional relations to the 
Union by the patriotism and energy of her injured 
and betrayed people." 

Does he mean us to judge upon the position 
of the State of Tennessee? 

" Before the war was brought to a termination they 
had placed themselves in relations with the General 
Government, had established a State government of 
their own, and, as they were not included in the eman- 
cipation proclamation, they, by their own act, had 
amended their constitution so as to abolish slavery 
within the limits of their State. I know no reason 
why the State of Tennessee, for example, should not 
fully enjoy 'all her constitutional relations to the 
United States.'" 

I shall not read any more from the message, 
though it contains other language which goes to 
confirm the same idea. If I have mistaken the 
view of the President, I shall be very glad to 
be corrected by him or by anybody that is au- 
thorized to speak for him ; and one would think 
there are jilenty of those gentlemen about ; but 
what he says is, substantially, in my judgment, . 
this: "I have come to the conclusion that 
these States are in the Union to be represented 
in the councils of the nation, and particularly 
the State of Tennessee. I admit that certain 
things must be done ; they must, show their 
loyalty, but I am the person to decide upon 
whether those things have been done : whether 
that loj'alty has been shown ; whether that con- 
dition has been complied with, and all other 
conditionsthat I may judge necessary, and when 
I have decided that question with refereuce to 
these States, Congress m.ay take up the ques- 
tion of the elections, qualifications, and returns 
of the memljcrs who present themselves to them, 
inquire into that, and have nothing to do but 
to settle the question whether they come within 
the provisions of the Constitution or not." 

If the President does not mean that, then the 
question is for Congress to decide. If he does 
mean that, the issue of which I spoke is directly 



8 



presented to Congress. For myself, I could not 
rest, as a Senator of the United States, content 
with my position ; I could not believe that I was 
faithful to the great interests committed to my 
care, connected with others as I am, by the 
State which sent me hero, if I yielded for a 
moment to the idea, come from what source it 
may, that anybody but Congress had the right 
with reference to Senators and Representatives 
to settle preliminarily the question whether the 
States that sent them here were entitled to have 
Senators and Representatives or not. 

Sir, we should be yielding everything, we 
should have no power left, we should be less 
than children, we should hardly be entitled to 
call ourselves slaves, if a question upon which 
the very existence of these bodies, the Senate 
and House of Representatives may depend, the 
question of whether a State, or a body of men, 
or an organization anywhere is entitled to rep- 
resentation here, is not for lis to settle, and us 
alone, so far as those proposed members are 
concerned, without any dictation from anybody, 
ay, without any advice from anybody. The 
President is by the Constitution authorized and 
required to give information to Congress from 
time to time on the state of public affairs ; but 
upon a question aifecting the representation in 
the Senate or in the House of Representatives, 
he is not competent even to advise us, from his 
position and from the necessity that exists that 
all these different branches of the Government 
should be entirely independent of each other. 
I am free to say I should consider myself as sit- 
ting in a body bound hand and foot, having no 
power, no rights, no independence, no char- 
acter, if I thought I was compelled to ask the 
opinion of any one with regard to the right of 
a Senator to sit upon this floor and the right of 
the State which sent him here to be represented 
upon this floor. It is a question for us, and 
only for us. 

Looking, therefore, upon these two argu- 
ments in this part of the veto message as I did, 
one distinctly indicating that no legislation af- 
fecting the States which have recently been in 
rebellion would meet with the approval of the 
President while those States were not repre- 
sented here, the other that all the considera- 
tion that we as members of the Senate had a 
right to give to this subject was to look at the 
papers presented and say whether men coming 
here had the proper credentials from some- 
body, leaving the question to be settled at the 
other end of the avenue whether or not the 
Statf'S themselves had aright to be represented 
on this floor — while I considered those two 
things as not only shadowed forth, but distinctly 
stated in the veto message, I could not hesitate 
for a single instant to say that where such rea- 
sons were given for the veto of a bill, I could 
not, without sacriflcing all my self-respect, and 
what is of more consequence, sacrificing, as far 
as I am concerned, all the rights and honors of 
tlie body of which I am a member, vote to sus- 
tain tliat message. Under those circumstances, 
and, 1 will confess, influenced by that partic- 
ular message, influenced Ijy those views and 
igtateraents of the President, the committee of 



fifteen, which is so denounced, saw fit to pro- 
pose distinctly the resolution which is now upon 
your table; and it is this: 

That in order to close agitation — 

To have no more dispute about it among our- 
selves as to our own action — 

upon a question which seems likely to disturb the 
action of the Government, as well as to quiet the un- 
certainty which is agitating the minds of the people 
of tlie eleven States which have been declared to be 
in insurrection, no Senator or Representative shall be 
admitted into either branch of Congress iroir^ any of 
said States until Congress shall have declared such 
State entitled to such representation. 

That, sir, is resuming the original proposi- 
tion, substantially. H.aving been instructed to 
inquire into the condition of these States, and 
to report whether they, or any of them, were 
entitled to representation, and not being pre- 
pared to report on that question, we propose to 
the House and the Senate this resolution, pro- 
viding that — 

No Senator or Representative shall be admitted 
into either branch of Congress fromany of said States 
until Congress shall have declared such State enti- 
tled to such representation. 

Originally, I did not tliiuk that resolution 
was necessary ; but now I do. Why ? In order 
that Congress may "assert distinctly its own 
rights and its own powers ; in order that there 
may be no mistake anywhere, in the mind of 
the Executive or in the minds of the people 
of this country ; that Congress, under the cir- 
cumstances of this case, with this attempted 
limitation of its jjowers with regard to its own 
organization, is prepared to say to the Execu- 
tive and to the country, respectfully but firmly, 
that over this subject they have, and they mean 
to exercise, the most full and plenary jurisdic- 
tion ; they will be limited with regard to it by no 
considerations arising from the views of others 
than themselves, except so far as those consid- 
• orations may affect the minds of individuals; 
we will judge for ourselves, not only upon cre- 
dentials and the character of men and the 
position of men, but upon the position of the 
States which sent those men here. In other 
words, to use the language of the President 
again, when the question is to be decided 
whether they obey the Constitution, whether 
they have a fitting constitution of their own, 
whether they are loyal, whether they are pre- 
pared to obey the laws as a preliminary, as 
the President says it is, to their admission, we 
will say whether those preliminary require- 
ments have been complied with, and not he, 
and nobody but ourselves. 

It was my very strong impression and opin- 
ion with reference to this matter which induced 
me to ask the Senate to take up this question 
now. I deem it as transcending in importance 
the question of the amendment of the Consti- 
tution which has been under discussion for 
several days. I deem that in the present con- 
dition of the country, situated as we are, ittran- 
scoiids in importance every other question. 
AVhcre are we, sir? Let us allow ourselves to 
consider for a moment. If wc; are not to iiu]uire 
into and be satisfied of the condition of these 
States, if we are not to inquire and ascertain 
whether thev are or are not in such a situation 



9 



that they may safely come here and govern, (be- 
cause when they come here they come as rulers, ) 
but if somebody else is to settle that question 
for us, all that Congress has to do is this : when 
a State chooses to go out of the Union and make 
war upon it, itis*to provide means for the occa- 
sion ; when the State has been conquered and 
is ready to come back again, it is to inquire of 
somebody else whether the State is in a condi- 
tion to come back, and is to take tlie men who 
are sent here, and who may come here with 
credentials from a military governor appointed 
by the President, without a word except as 
to tlieir qualifications. 

Mr. President, this subject is one upon which 
much might be said. I have been proud of the 
fact — and perhaps I am, therefore, to be hum- 
bled—that I am a member of the Senate of the 
United States. I have deemed that the posi- 
tion was a great one, one of which any man, no 
matter how great his powers, might well be 
proud, and with which his utmost ambition 
might be well contented. Why? I supposed 
that Senators were somewhat in the nature of 
representatives of the people, although selected 
by the Legislatures of the States ; that Sena- 
tors, like Uepresentatives, were sent here for 
the purpose of guarding the interests of the peo- 
ple, and althougli other officers were chosen for 
specific terms and exercised for the time greater 
power, that after all the protection of this Gov- 
ernment must be found in its Congress ; that 
public opinion was represented»here, the pub- 
lic wishes were represented here, the rights of 
the whole people were guarded here, the money 
of the people was taken care of here— I mean 
in Congress, taking both Houses together — and 
that, in fact, all the essential powers of the 
Government, everything that was necessary in 
order to protect our form of government re- 
publican, and to save the liberties of the coun- 
try, rested in the faithfulness of the Senators 
and Representatives of the United States, and 
in their power to judge of what was necessary 
in order to constitute and regulate their own 
bodies. But, sir, if this is not so, if they are 
confined simply to a mere question of papers, 
to a mere question of credentials, to simply 
taking the opinions of others as to who are en- 
titled to seats in this body, so far as States hav- 
ing the right to send them here are concerned, 
theii I consider that we are reduced to be mere 
creatures of circumstance, nothings, nobodies ; 
at any time we may be overwhelmed ; at any 
time we may lose our power; at an}^ time we 
may cease to be that check, which the Consti- 
tution intends we should be, upon the Execu- 
tive of the United States — upon other branches 
of the Government ; at any time we may lose 
all of which we have been so justly proud with 
reference to our own condition as assigned us 
by the Constitution of the United States. Sen- 
ators will pardon me, I hope, for speaking at 
such length upon that subject. 

I believe that the President is a friend of his 
country. I believe that he is a patriotic, de- 
voted citizen ; that he would do nothing to in- 
jure any of its institutions under any circum- 
stance if he was aware, while doing it, of what 



he was doing. I believe, liowever, in reference 
to this matter that he has spoken unguardedly. 
His feelings in relation to the admission of Ten- 
nessee particularly, aiul these ot her States, have 
carried him beyond what I l)elieve in calmer 
moments and on due consideration he would 
be willing to go; far lieyond what he himself 
on a calm review would find it in his power 
to stand by. I'his part of his message is not 
well considered. That is all I choose to say of 
it. But it is a message from the President of 
the United States. It is a part of the record. 
We must consider it as a part of the record, and 
while it so stands as a reason given for vetoing 
a Ijill of Congress, we must treat it precisely 
in the same manner as if we believed that every 
word of it was intended. I would not insin- 
uate for a moment that the President would ad- 
vance a sentiment that was calculated to wound 
the Constitution in any degree. On the con- 
trary, I believe he would not. No man has 
shown a greater attachment to it than he has; 
and I wish to speak of him respectfully and 
kindly. But whether he means it or not, when 
he advances opinions and lays down principles 
which, in my judgment, strike at the very exist- 
ence of this body as a power in the Govern- 
ment, I cannot but enter my solemn dissent 
from it, and call upon Congress to assert its 
own rights and its own position with reference 
to all these questions. 

Mr. President, 1 have spoken at greater 
length upon this point than I intended. I 
had desired, as I did on a former occasion, to 
say something u])on the main question which 
renders our consideration of this matter neces- 
sary. I exhausted myself before upon another 
branch of the subject, and I have done pretty 
much the same now with regard to this. But if 
the Senate will forgive me I wish to state my 
own views in as few words as possible upon the 
great question of reconstruction. It comes in 
here naturally, and perhaps I may as well state 
my opinions upon that subject before I leave 
the question under consideration. 

For four years we were in a state of war, and 
during those four years, according to my recol- 
lection, almost fromthe beginning, we discussed 
the question of reconstructing the States. A 
great many gentlemen in this Chamber and in 
the other House made elaborate speeches upon 
the question of reconstruction. I made none. 
I did not express an opinion upon it, for the 
simple and single reason that we had nothing 
at that time to reconstruct, and I thought it 
better to attend to the proper business we had 
in view, to quell the rebellion, to overcome the 
rebellious States, and to put them in a condi- 
tion to be reconstructed, before we undertook 
to reconstruct them. The proper time has now 
come. We are now entitled to consider the 
question of reconstruction. The President 
began to consider it beibre we did; 1 mean 
since the overthrow of the rebellion. He took 
his own course. I have had occasion once or 
twice to speak of the course that he took as 
not entirely meeting my own views, while I 
did not undertake to find the slightest fault 
with him for the course he chose to follow. 



10 



But, sir, with reference to that matter allow 
me to say that I think the better way would 
have been for him to have kept all those States 
uiuKt his own power as Commander-in-Chief of 
the Army of the United States, and waited until 
Congress eame together, to consult with Con- 
gress as to what was the best mode of getting 
them back again into the Union. He did not 
choose to do that, and I had no disposition to 
complain, for I believe he acted with good 
intentions. He chose, by virtue of his power as 
Commander-in-Chief of the Army, to appoint 
provisional governors in some of these States, 
and I do not know but in all of them, and to say 
to the Stiites that he would aid them in the pro- 
cess of reconstruction by api)olnting men who 
should call conventions, and under which they 
'might make constitutions, &c. They proceeded 
to do it, and it is within my recollection, and I 
think it must be in the recollection of a great 
many others, that wliile that was being done, 
and up to a very recent period, the President's 
declaration was that it was only an experiment, 
that if it turned out, from the conduct of these 
States, that they were loyal and could put them- 
selves in a fit position to be admitted into the 
Union, then they could be admitted ; but if not, 
nothing was lost, because they were in our hands, 
referring to Congress and to the President. I 
was content with that, so far as it went, and I 
Ijelieved that when we came together as a Con- 
gress the great question in reference to these 
matters would be in our hands. We met. We 
passed a resolution that the two Houses of Con- 
■grcss would consider it, and it seems that that 
resolution gave very great offense in many quar- 
ters. But, sir, we have been proceeding to con- 
sider it, and, according to my view, as I have 
expressed it here to-day, we had a perfect right, 
and not only a perfect right but it was our duty 
to do so. The question of reconstruction, then, 
on our own plan, according to our own ideas, is 
before us, and with reference to that I wish to 
lay down a few very simple propositions. 

With regard to what is transpiring before the 
committee of fifteen it will not become me to 
say much : nothing in fact as to what they 
intend to do. That must be shown by their 
actions. But I can state some views as they 
occur to me with regard to our powers and 
what is expedient. 

Mr. President, I think it will not be disputed 
by anyliody, not even by the Senator from 
Maryland — and I call his attention to it — that 
this country has been in a state of war, deci- 
dedly in a state of war, war according to the 
books, war in its worst acceptation, war in the 
very strongest mc.ining of the term, witliout 
any limitation or qualilication. If we have been 
in a state of war, the question arises — and it is 
a very simple one, and I think this whole thing 
lies in a narrow compass — is there any dis- 
jjute as to what are the consequences of war? 
What are the consequences of successful war? 
Where one nation conquers another, overcomes 
it withoutqualifications, withoutterms, without 
limits, and after a bitter contest succeeds in 
crushing its enemy, occupying its enemy's ter- 
ritory, destroying its armies, what are the con- 



sequences? The Senator is pefectly familiar 
with the writers on international law. Let 
him read the chapter in the book under my 
hand upon " Acquisitions by War." Is there 
anything more certain than that the conquei'or 
has a right, if he chooses, to change the form 
of government, that he has a right to punish, 
that he has a right to take entire control of 
the nation and the people, that he has a right 
to exact security for the future, and such secu- 
rity for his own safety as he may demand ; that- 
all these rights are his, with only the limitation 
that he shall not abuse them and conduct them 
in a manner contrary to humanity, in the ordi- 
nary acceptation of the term ? 

Mr. JOHNSON. What is the book? 

Mr. FESSENDEN. Vattel, which is per- 
fectly familiar to the Senator as it is to every- 
body else who is master of the subject. I can 
take up the book and read passages to show 
precisely what I have stated, in the strongest 
possible terms. I did not think it necessary to 
hunt up a dozen authorities, because the law is 
the same in all. There is no dispute about it. 
That principle, then, is settled. Those are the 
consequences of successful war. We are told 
that we did not wage a war of conquest. Cer- 
tainly we did not. Congress said precisely 
what it meant at the time it stated that this war 
was not waged for any purpose of subjugation. 
It was not commenced with any such idea, but 
if it follows that subjugation must come in order 
to accomplish what we desire to accomplish 
and what we must accomplish, it is not our fault. 
If subjugation becomes necessary, although that 
was not the idea with which the war was com- 
menced, who can complain? Let me ask the 
honorable Senator from Maryland a question. 
He has cited in the course of some speech or 
speeches he has made here, tha£ resolution 
passed by Congress 

Mr. JOHNSON. I never cited it. 

Mr. FESSENDEN. Then it has been cited 
by others. Suppose we made it, and suppose 
it is binding upon us. Binding with whom? 
Was that a compact with the confederate States? 
It was a compact with our own people. We 
told them and they told us that the war was not 
waged for any such pmrpose. It was not a 
promise made for the benefit of the confederate 
States, it was not a promise made for the bene- 
fit of others, but for our own benefit, and the 
honorable Senator is perfectly familiar with the 
legal principle that unless tlie consideration 
comes from A, he cannot avail himself of a 
j)romise made by B to C. That, then, is simply 
the case here ; that is tlie law. Nobody will 
dispute it. Those are the consequences of war 
generally. 

Now, is there any more dispute as to the 
next proposition, that the consequences of civil 
war are precisely tlie same ? Is there any writer 
who does not lay it down distinctly that where 
a civil war. in the proper sense of tiie term, 
has existed, tlie consequences of that civil war, 
so far as the rights of the parties are concerned, 
are precisely the same that they are in other 
cases ? If compelled to carry on the contest 
upon the same principles — as we are by.iilie law 



11 



of nations — and to treat it in all respects as a 
war between two independent nations until the 
war is closed, is there a dispute th;it jirecisely 
the same consequences follow, precisely the 
same rights are obtained as would be the case 
in an international war? If not, let the Senator 
show me where he finds a distinction drawn 
between the consequences in the two cases. I 
take it these two propositions are beyond dis- 
pute ; there can be no difSculty about them. 

Then the question arises, and it is only a* 
natural one, does our form of government 
change in any way tlie nature and inevitable 
legal consequences of a civil war? Is a civil 
war waged among us, living as we do under a 
written Constitution, different in anyway so far 
as the consequences are concerned, on account 
of that written Constitution, from a civil war in 
any other nation in the woi-ld? That is a ques- 
tion upon which men may pause. It is very 
manifest to me that there can be no difference 
at all. And here I come to consider for a mo- 
ment the argument of the honorable Senator 
from Maryland, because that is what I wanted 
to address myself to. He says that Congress 
can do no more than quell an insurrection ; our 
Constitution speaks only of insurrections; and 
when an insurrection has existed in a State, 
the moment that insurrection is over the" State 
returns to its former position ; and he reads, 
I believe, from that clause of the Constitution 
which says that Congress may provide for call- 
ing forth the militia to execute the laws of the 
Union, suppress insurrections, and repel inva- 
sion. Now, does the Senator undertake to say 
in any way that that is all our Constitution 
gives power to do? If I understand the argu- 
ment of the honorable Senator, it is this : here 
are State governments, and as there are State 
governments, and as we are living under a 
written Constitution, and Congress by the par- 
ticular terms of that Constitution has power to 
provide for calling out the militia to sujipress 
insurrections and repel invasions, therefore 
everything that takes place in the way of a fight 
in this countr}', no matter what its extent, is to 
be considered an insurrection within the mean- 
ing of that clause. Do I understand the Sena- 
toi' to take that ground? 

Mr. JOHNSON. I said that Congress had 
no authority to carry on war against a State. 

Mr. FESSENDEN. My answer to that is 
simply this : the Constitution has not specifically 
provided for the case of civil war ; it never con- 
templated civil war ; it would not contemplate 
civil war ; but it provided the means to quell 
it by giving power to Congress to raise and 
support armies without stating for what ob- 
jects those armies might be used ; and it gave 
power to do everything in fact that is necessary 
to be done in order to preserve and support the 
Government. But it speaks of insurrection. 
What is an insurrection? Isitcivil war? The 
Senator will hardly contend that they are syn- 
onymous terms. An insurrection, such as is 
mentioned and referred to in the Constitution, 
is not civil war; it is something far less. The 
Senator will remember that Vattel — for I go no 
further so far as this argument is concerned — 



speaks of a tumult as one thing that may take 
place, that is, when there is a tumultuous as- 
semblage and tlic laws are violated ; and when 
that tumult assumes form and becomes a resist- 
ance to the law and to the governing authority, 
it is an insurrection ; and when it assumes a 
greater form, and the laws are successfully re- 
sisted, and the sovereign power is defied by 
armed force, then it becomes a civil war. Is 
that condition of things what was meant, and 
all that was meant, by the clause of the Consti- 
tution giving power to call forth the militia to 
suppress insurrection? 

it' the Senator is right in his construction, 
there is no such thing as civil war under this 
Government, and can be no such thing; the 
Constitution does not provide for it ; it speaks 
simply of " insurrection f and there can be 
none of the consequences of civil war, there can 
be none of the rules applicable to civil war, be- 
cause the Constitution has not provided for it. 
Sir, this clause is of the narrowest possible lim- 
itation, and refers only to ordinary tumults car- 
ried to such an extent as to become insurrec- 
tions that are perfectly familiar to us all, and the 
very provision of the Constitution which the 
Senator has quoted shows that was the under- 
standing. The truth is, it has reference simply 
to the militia. It is a power — 

"To provide for calling forth tlie militia to execute 
the laws of the Union, suppress insurrections, and 
repel invasions." 

Not that Congress shall have authority to 
suppress insurrections, as the Senator would 
have read it, and repel invasions ; but it may 
use the militia force for the purpose of sup- 
pressing insurrections and repelling invasions, 
meaning simply that on a sudden emergency, 
when there is an insurrection or invasion. Con- 
gress may call upon the militia temporarily for 
the purpose of effecting the object. That is all. 
Now, then, sir, understanding that war has ex- 
isted, and that its consequences are such as I 
have stated, and that civil war is attended by 
all the consequences of other wars, even among 
us under the Constitution, I say that, in my 
judgment, a State may be utterly extinguished 
and swept out of existence by civil war. It is a 
necessary consequence if the law of nations 
exists among us and we are bourfd by its pro- 
visions. A State may forfeit its status. The 
Government may say that it has forfeited its 
status, if it pleases to say so. It may impose 
upon such a State punishment; it may protect 
itself against the future ; and if, in order to pro- 
tect itself against the future, the Government 
finds it absolutely necessary to prevent it from 
resuming its original position, it has^the perfect 
power to do so. It is a necessary consequence 
of the principle. 

It has been said, men have been fond of say- 
ing, "Once a State, always a State." That is 
not true of States in general. It is not true as 
a matter of fact. States may live and States 
may die. I do not hold that these States are 
dead, but I hold that States may die an8 have 
died heretofore. But not being true of States 
in general, it is not true of these States. Once 
a State, it does not follow that they are always 



12 



necessarily States, in the sense that we use the 
term. They may continue to be States, they 
may continue to be orjrani/.ations, but it is a very 
diSerent question whether, as such organiza- 
tions, they are States of the Union and in the 
Union. Thatdependsui)Onothcrconsiderations. 
I ask the Senator if something is not necessary 
besides geographical extent and political or- 
ganization as a State in order to be a State of 
the Union? Must there not be a constitution 
of the State? Must there not be a government 
80 constituted that it has relations, and fitting 
relations, to the Government of the United 
States ? Must it not be in a position to perform its 
duties? Has it not obligations to be performed 
toward the United States, as well as the right 
to insist on the performance of duties to be 
received from the Government of the United 
States? Can there be a State of this Union 
without a constitution which makes and shows 
its form of government and places it in relations 
with the Government of the United States? Can 
it be a State of this Union without any provision 
through which and by which it can perform the 
obligations which it is under to the United 
States, to the Government of the whole ? Cer- 
tainly not. Therefore it is not true that although 
a State may exist in some particulars, it exists 
in all relations to the Government of the United 
States, and is a State in the Union, because 
it has an organization. The result does not 
necessarily follow. 

In order to constitute a State of the Union 
there should be a republican government ; that 
government must be acknowledged by Con- 
gress, and that government must have the requi- 
site provisions to connect it with the Union. 
When that government is destroyed, when the 
ligature is broken, when there are no provisions 
whatever that connect it with the United States, 
it ceases to be a State of the Union from ne- 
cessity. I do not say that its people pass out 
from under the jurisdiction of the Government ; 
it belongs to the Union and its people are un- 
der the authority of the Union ; but as a State 
having rights in the Union — rights, for instance, 
in this Congress — when it has ceased to connect 
itself with the Government by its own act or in 
any way, it is at an end for the time being, be- 
cause something more is necessary than a bare 
organized existence. That is the position that 
I assume, and I have not been able to see but 
that it is correct. 

Now, will the Senator deny, will any one 
deny, tliat there has been a period and a long 
period during which there was no connection 
between these confederate States and the Gov- 
ernment of the United States ? Have not years 
elapsed during which no such connection cx- 
islicd ? Was not the form of government which 
bound them to the Union entirely destroyed ? 
Was not the connection obliterated? Were not 
all their people in rebellion? Was there any- 
thing by wliicli any of those States could con- 
nect itself witli tlio Government with which it 
had been formerly connected, and if not, what is 
necessary in order to Ijring it back? is it not 
necessary that it should Ijc recognized by this 
Government ? Is it not necessary that it should 



have a constitution which does connect it with 
this Government? Is it not necessary that it 
should place itself in a position to discharge its 
duties toward this Government? And when it 
has done that, must it not apply to the Govern- 
ment for admission, for reinstatement in the 
Union? 

This question has been argued, and argued 
by authority, as if we had nothing to say about 
it ; as if these people were back again simply 
Ijccause they had made State constitutions. 
How do we know it? What proof have we? I 
want an answer. 

Mr. COWAX. That question arises when 
the representatives of those people come here. 

Mr. FESSENDEN. But they do not bring 
their constitutions with them. 

Mr. COWAN. We have a right to inquire, 
if it becomes necessary to determine whether 
they were properlv elected. 

Mr. FESSENDEN. Undoubtedly ; but the 
argument is that we have no right to inquire 
into anything except that they have been elected. 

Mr. COWAN. Oh, no; it raises the whole 
question about the legitimacy of the body which 
elected them. 

Mr. FESSENDEN. What body? 

Mr. COWAN. The Legislature that elects 
Senators. 

Mr. FESSENDEN. But have we not a right 
to see the constitution ? Should not that consti- 
tution be presented to us? It has been once 
overthrown, obliterated, gone. 

Mr. COWAN. You inquire iiito their con- 
stitution when you inquire into the election, and 
see whether the person claiming to be elected 
was chosen by the proper body. 

Mr. FESSENDEN. What, then, becomes of 
the argument that they can be admitted on their 
credentials? Are we not to inquire into the con- 
dition of the States? 

Mr. DOOLITTLE. Will the Senator allow 
me to state that no one has ever pretended, that 
I ever heard, that we were confined to inquiring 
into the credentials merely. We have a right 
to inquire whether there was a Legislature to 
elect them, whether the people were in a con- 
dition to choose a Legislature to elect them ; 
but what we say is that the Senate is to jtidge 
for itself whether members have been elected 
to this body, and should not allow the House 
to judge for it. That is the position. 

Mr. FESSENDEN. And who has ever pre- 
tended that the House would judge for the 
Senate, or the Senate for the House? 

Mr. COWAN. If the honorable Senator 
pleases, I understand this resolution is that 
before we shall get at that question we must 
have a law passed by Congress. 

Mr. FESSENDEN. A law jmssed with ref- 
erence to the single question whether the States 
are in a condition to elect. 

Mr. DOOLITTLE. Wo inquire into that 
for ourselves. 

Mr. FESSENDEN. I do not intend, Mr. 
President, to be called off from the ground that 
I was assuming. It was simply this, that when 
they come here, after having been disconnected 
with the Union, they must satisfy us that they 



13 



have done all that is necessary in order to re- 
store them to llu! Union ; tliut they have a re- 
publican form of j^overnnient ; that tliey have 
those provisions which are necessary to enable 
them to perform their duties. Must not that 
be required ? 

Mr. D IXON. Satisfy whom ? 

Mr. FESSENDEN. Satisfy Congross._ That 
is the very question which I liave hccn discuss- 
ing; but I am speaking now of the question of the 
right to return, of whetheraState is outand Iiow 
it is to get in. If gentlemen concede that these 
States have been so disconnected with the Gen- 
eral Government that they had no riglit to repre- 
sentation here, that they were not States of the 
Union and in the Union for this purpose, that 
in order to acquire that right they must come to 
Congress and apply to Congress and furnish the 
necessary proofs that they are in a condition to 
claim the rights of States in the Union, it is 
sufficient for my purpose. If they admit that, 
it is all I desire. But an entirely different doc- 
trine has been laid down here ; and it has been 
said that when gentlemen come here claiming 
to represent these States we must hurry to ad- 
mit them because they present credentials from 
States ! What have gentlemen said here ? "I 
present the credentials of A or B or C ; they are 
in due form." We may inquire as to the form. 
May we not inquire where is the State consti- 
tution? Has it been presented to us? Have 
we seen it? Has there been any application 
from any of these States to be readmitted, if 
you please to call it so, under its constitution 
or to have its new constitution recognized and 
its acts under it? Not one. We do not know 
to this day officially in proper shape that any 
one of these States has formed a constitution. 

M. COWAN. You will not allow us to raise 
the question. If you take up the question of 
the admission of some of the gentlemen sent 
here, we will show you a constitution and a duly 
constituted Legislature qualified to elect, and 
that they were elected. 

Mr. FESSENDEN. And what does that 
prove ? That when the question is asked whether 
there is a constitution formed, the Senator from 
Pennsylvania pulls one out of his pocket, and 
says, "Here is a constitution." That is not 
the way to deal with Congress upon these ques- 
tions. What I say is, that if their relations to 
the Union have been dissolved in the way they 
have been, what they have to do is to come 
here by their organizations, their Legislature, or 
convention, and present their constitution to 
Congress for examination, and ask that their 
representatives be admitted under it, which no 
one of them has yet done. That we have a 
right to demand. Suppose their credentials are 
in due form, have we not a right to go further 
and inquire what the condition of those States 
is and has been since their former governments 
were overthrown ? I suppose Senators now will 
admit that. 

I had no Idea when I rose that I should speak 
so long on this matter, but as I have got into 
it I may as well finish what I have to say. I 
wish to notice some things that have been said 
more than once by the honorable Senator from 



Pennsylvania, [Mr. Cow.\n.] He has talked 

to us about the q\iestion of ta.xatlon and repre- 
sentation, and app(;aled to us to admit these 
people, to admit tlicsci States, to admit their 
llepresentativcs and Senators, because, as he 
says, it is gross injustice that tiiey should be 
taxed and not re])resented. How is that? Had 
we no right to tax them during the reb(;Hion if 
we could ccdk'Ct tlie tax? ^V'ere we bound, 
Ijccause they chose to go into a contest against 
this Government, to let them oft' and not levy 
ta.xes upon them? The Senator will liardly 
contend for that. Wlille they were in reliellion 
does the Senator say that wc had no right to 
tax them? 1 am very glad to bring him to 
that point. He holds, then, tluit we had no 
right to consider them as subject to the Consti- 
tution. 

Mr. COWAN. The honorable Senator will 
allow me to state my position fairly. I will 
give it to him. I hold that it is the duty of every 
Government to protect its subjects ; and that 
while it is unable to protect them, and while it 
is not strong enough to suppress a rebellion 
originating among them, and when it does not 
protect them, when it leaves them under the 
dominion of usurped authority, while this con- 
dition of things lasts, it has no right to tax 
them. 

Mr. FESSENDEN. In other words, Mr. 
President, if the people of a particular portion 
of the country choose to set themselves up 
against the General Government, and to levy 
an army against it and fight against It, we lose 
all our rights of government over them. We 
cannot control them, we cannot tax them, we 
cannot call upon them for the performance of 
any duty. We have a perfect right to kill them, 
but iaot to treat them as subjects of the Gov- 
ernment. That is the Senator's position. He 
assumes that these people were people that we 
did not protect, that when the power of a State 
had passed into the hands of those inimical to 
the Government, and when the whole people 
en masse had risen against the Government, we 
had ceased to protect them, and therefore we 
had no power of government over them, no 
matter how strong they are ; that until we put 
down the rebellion all our power was to destroy. 
A very fraternal and benevolent idea ! I was 
struck, very much so from time to time, by the 
arguments of the honorable Senator. I waa 
puzzled somewhat when he talked about the 
course of other nations over their conquered 
people and told us that they at once took them 
,into partnership. I think he referred to the 
example of Rome, aiul said that Rome never 
made the people she conquered slaves. I have 
some idea that they did tax them, that they 
sent proconsuls to govern them. 

Mr. COWAN. What I said of Rome was 
that she always adopted one of two ways after 
conquering a people. She either gave them 
their original rights back again and very often 
treated them as Roman citizens, or she Extermi- 
nated them or scattered and drove them away. 

Jlr. FESSENDEN. I did not hear that she 
ever admitted their delegates into the Senate. 
I never heard it claimed that they had a right 



14 



of representation in the Roman Senate. She 
did have a sort of governor that she called a 
proconsul wlio ruled the conquered provinces. 

However, this conversation with the Senator 
is, perhaps, out of jilace, and 1 shall proceed 
with niv argument, if it may be called an argu- 
ment. The Senator has now contended (and 
it is a necessary consequence of the position he 
assumed the other day) that we necessarily lost 
all our right of go%-crnment over these people^ 
as the United States of America, by the simple 
fact that they were enabled to rebel and to 
raise an army to fight us. He has saved me 
the trouble, tiierefore, of asking my (itlier ques- 
tion. I was about to ask him if we had tliat 
power while they were in rebellion, whether 
the power of taxation did not continue for a 
little while after the rebellion was quelled, or 
whether we must necessarily wait until the 
Government was restored in all its perfection 
and in all its parts over these conquered peo- 
ple, these subjugated people, until they came 
back into the Government as rulers with us. 

Now. sir, let us look at*this question. Gen- 
tlemen have been talking here from time to 
time and in the other House about the great 
abuse that these States were not admitted to 
representation while the Government was going 
on to tax them. Sir, the arms that w-ere raised 
against us were never laid down until last April. 
From that time to December Congress was not 
in session. They were under the control of 
the military power. We came together on the 
first Monday of December. There had been 
an exhausting war, four years of deadly strug- 
gle; hundreds of thousands slain, hundreds of 
millions spent ; a war more savage, in my judg- 
ment, on the part of the enemy we had to en- 
counter than has been known in modern times ; 
in which the mast savage hate was exhibited 
against everything that was not of the confed- 
erates, which wasdislinguished, remarkalde, for 
its character, so distinct from all those wars that 
have marked modern ])eriods. We came to- 
gether in December, and certain men presented 
themselves claiming to be admitted as Senators 
and as Representatives upon these floors. We 
had not been together thirty days before gen- 
tlemen contended here that they were entitled 
to admission upon an equality with ourselves 
and as parts of the governing power. It is not 
now ninety days since this Congress met: and 
before the expiration of ninety days, ■ fter this 
war of four years of the character lliat existed 
and with denunciations of the most Ijlttcrkind 
from all that people, we are told that v.-e are 
perpetrating the most gross injustice because 
they arc not already here in these seats as Sen- 
ators and l^iopresentalives in Congress, and that 
our legislation is substantially good for nothing 
because they are not here. 

It is a most remarjiable foot in this connec- 
tion that not only have we not been together 
ninety days when we are called upon to admit 
these Senators and these Representatives, but 
we are called on to decide that the condition 
of that people is such as to render it safe, when 
the President himself, who calls upon us to do 
it, has not withdrawn his suspension of the writ 



of ?iahea.i corpus throughout that territory, but 
keeps his Army in that territory, and when all 
the generals and himself at tlie head of all the 
generals tell us that it is unsafe to withdraw it, 
that they cannot be left to themselves, and that 
the Army mu.st remain and they be kept under 
military law. 

Mr. President, this strikes me as somewhat 
singular; and I say this because I want the coun- 
try to understand it. Is no time to be allowed? 
Here, it is said, are eight millions of people ; 
here is a territory embracing three quarters of 
a million of square miles ; here have been eleven 
States in rel)ellion ; here has been a war of four 
years. Congress meets ; the question is to be 
submitted to that Congress ; and gentlemen 
talk here and denounce it, and the President 
himself denounces it, and the newspapers de- 
nounce it, and the Democracy denounce it : 
all raise their cry against us because within 
ninety days, when the President himself, as Com- 
mander-in-Chief of the Army, does not choose 
to withdraw the Army from that territory, we 
hr.ve not put its Representatives and Senators 
in these seats to govern for themselves and to 
govern us. I allude to this fact simply for the 
purpose of showing how utterly false are the 
accusations made against Congress, come from 
M-hat quarter they may, how utterly unreason- 
able it Is to suppose that a question of this kind 
is to bo settled in such a hurry ; how utterly 
unreasonable it is when the Senator from Penu- 
sylvaniii undertakes to tell us that there is but 
one course to pursue, and that Is to admit these 
people inRtanicr, to assume that they are in a 
condition to be admitted, to assume that all the 
questions have been settled by other authorities 
in point of fact. 

Mr. COWAN. I beg that the gentleman will 
alloM' me to correct him. I do not want it to 
go to the country in his speech that I said they 
should be admitted instanter. I never said any 
such thing. I have contended that their cre- 
dentials should be received and their cases ex- 
amined by each House for itself, and that that 
ought to be done immediately : and think now 
that the sooner it is done the better. 

Mr. FESSENDEN. The Senator's language 
has been the language of denunciation of Con- 
gress, at least of complaint. 

Mr. COWAN. Oh, no ! 

Mr. FESSENDEN. Very well. Does the 
Senator admit that Congress has the right to 
examine into the condition of these States as 
p;irt of the question of admission? 

Mr. COWAN. No, sir. 

Mr. FESSENDEN. I thought so. Who 
then is to settle the condition of these States? 

Mr. COWAN. Each House for itself. 

Mr. FESSENDEN. Do not the Houses 
constitute Congress? Does the Si'uator admit 
that the Senate has a right to examine Into and 
satisfy itself of the condition of these States? 

Mr. COWAN. Unquestionably. I have 
lield it always. 

Mr. DOO LI TTLE. (t(fMr. Fessenhex. ) Tliat 
is all the point oI'dlfTerence between you and us. 

Mr. FESSENDEN. I think the Senator will 
find that we differ on a great many other points. 



15 



Mr. DOOLITTLB. I am speaking of this 
question now. 

Mr. FESSENDEN. Then the Senate has 
a right to examine into the condition of the 
States. Is' not that^ a preliminary inquiry? 
The Senator may answer or not, just as lie 
chooses. I say that if the condition of the 
States is to be inquired into by the Senate, 
it is a preliminary inquiry. .(I'he Senate has 
decided that that inquiry shall be made by a 
joint committee, a committee of the Senate 
and of the House of Representatives. It is 
not a question referring to the credentials of 
members, or whether a man has or has not 
proper credentials. The condition of the 
States is a question which may well be in- 

Suired into and better inquired into by both 
[ouses. 

Then we come to this point, that the only 
ground of complaint is, that instead of the 
Senate raising its own particular committee to 
make an examination it has raised a joint 
committee, in connection with the House of 
Representatives, to examine into the condition 
of the confederate States. How small a matter 
is that upon which to raise the great question 
of taxation without representation ! Are we 
to omit to tax these people while this inquiry 
is going on? Have we no right to govern the 
people of these States and make them con- 
tribute their share of the public burdens while 
this inqnir}' is being pursued ? Are we bound 
to let them go scot-free, and say we have no 
authority over them, because we have not yet 
settled the question whether the Senators and 
Representatives they have chosen to send here 
shall be admitted to seats or not ? In all such 
cases there must necessarily be a time when 
people are taxed without being represented. 
It is their own fault ; they have brought it upon 
themselves. We cannot relax the reins of gov- 
ernment because they have tried to shake off 
our authority. And j'et it is a favorite cry of 
the honorable Senator from Pennsylvania, and 
it has been repeated here over and over again, 
"What gross injustice you are committing by 
taxing these people while you are inquiring into 
their condition and seeing whether they are en- 
titled to representation on the floor of Congress ; 
because that is all that has been done.'" 

Suppose it were a year after a war of four 
years ; suppose it were even a longer time ; 
would they have any reason to complain of 
injustice? Would they have a right to turn 
around upon us and say, "What right have you 
to govern us a day, an hour, while we are not 
represented on the floor of Congress?' ' The an- 
swer is, " You have been in rebellion ; you have 
made war against the United States ; you are 
now crushed and overcome ; and we have now 
to ascertain whether you are fit to come back 
and have placed yourself in a position to re- 
turn;" and that, says the Senator from Penn- 
sylvania, is a gross outrage on the rights of the 
people, laecause it is taxation without repre- 
sentation. 

Now, sir, I have been speaking simply of the 
power of Congress ; but it is a very different 
question when you come to consider what it is 



best to do. I assert the power in its fullest 
extent; I assert that by the civil war they lost 
all the rights whicli I have enumerated, and we 
acquired those v/iiich 1 haw: specihed. 1 assert 
that they placed themselves in a position in 
which they were not connected with this Union 
as States. 1 assert that they have many things 
to do in order to regain that position. I assert 
that in the moan lime we have a right to govern 
them, govern them as Christian men and as 
statesmen, but to govern them because they 
placed themselves in a position to render it ab- 
solutely necessary that we should do so ; and I 
assert, moreover, that they cannot come back 
here to occupy these seats or seats in the other 
House until we — no matter whether it is done 
by joint or several authority, so that it is con- 
ferred by Congress — be satisfied ourselves and 
decide thnt they are entitled to occiqiy these 
seats again ; and that we have a right to take 
all the time necessary in order to give ourselves 
entire satisfaction on that subject, and they have 
no right to complain that in the meanwhile they 
are taxed without being represented, because 
they brought it upon their own heads. I say, 
moreover, that the interests and safety of this 
country require that we should be entirely con- 
vinced of what is due to ourselves and our con- 
stituents, and to the safety of all, before we 
proceed to the examination of the question of 
credentials and qualifications. 

But having said that, it is another question 
about what we should do ; I have been talking 
about the I'ight. Now, I hold that the good of 
this country requires that these States should 
be admitted ; that we should have from them 
Senators here in these seats ; that we should 
have Representatives in the seats in the other 
House just as soon as it can be done consist- 
ently with the safety of the people of this coun- 
try, and of the States now in existence, and of 
their own ; not that I hold that we should be 
doing them any great injustice if we kept them 
out; but it is my doctrine that the exercise of 
power is always dangerous. It is for our own 
good as well as theirs, and our own good in 
preference to theirs, that T would hasten that 
day and admit them in the shortest possible 
time ; and why ? Simply because if we con- 
tinue to exercise this power; if we continue to 
hold them in subjection, we perhaps create, 
and certainly intensify, the feeling of bitter- 
ness that already exists ; and not only that, but 
we intensify our own feeling. We are teach- 
ing ourselves to exercise a power which the 
Constitution did not contemplate ; which the 
good of this country ought not to permit and 
cannot permit. I should be sorry, I should deem 
it a blow, I should consider the country in dan- 
ger, if for any considerable length of time the 
present state of things should exist. No wise 
or good statesman would wish it to exist for a 
single moment longer than it was absolutely 
necessary, because the inevitable result is that 
we shall become demoralized ourselves. 

I hold, then, sii>^ that it is best for all that as 
soon as possible, as soon as it can be done with 
any reasonable show of safety to ourselves and 
to the Government of this country, these States 



16 



should be established in their original positions, 
that Senators should sit hero in this branch and 
Representatives in the other, and that we should 
proceed as best we may to govern the whole 
country, a Government with the assent of all, 
all being represented. But what 1 wish to enter 
my dissent to is the doctrine that we cannot 
and ought not to deliberate on the subject, in 
our own way, in our own time, and that while 
we are doing it we should be denounced and the 
committee of which I am a member be -de- 
nounced as an irresponsible tribunal, a central 
l^ower; some power created to take legislation 
out of its proper channels, and that the majority 
of tlie Coiig'.ess should be held up to the counti'y 
as it has been by gentlemen on the other side 
of the ilouse, to say the least of it, and I think 
also impliedly by my honorable friend from 
Wisconsin himself, as perpetrating injustice 
day by day every day that passed without seeing 
men back in these vacant seats, or the simple 
question of their credentials under consid- 
eration; that this was an outrage upon States, 
States lately at war, States which up to this 
day have never sent us their constitutions or 
made any request whatever in proper form to 
be admitted or readmitted to their original 
condition. 

When such complaints are made of the Con- 
gress, they are utterly without foundation. 
Time enough has not elapsed yet to give rea- 
sonable ground for dissatisfaction anywhere. 
Time enough has not elapsed yet to say, as 
was said by a gentleman on the other side of 
the House the other day, that we were keeping 
these States out of their places for party pur- 
poses, with no evidence whatever to substan- 
tiate the charge, except that we had not yet 
closed our investigation of their condition. Do 
Senators know what we have been doing? Do 
Senators know what evidence we have been 
taking ? Do Senators know what evidence we 
have received? Do, Senators know anything 
except that th.e President has expressed the 
opinion that these States- ar.ein lit condition to 
be received -here, and their. Senators and Rep- 
resentatives admitted to seats upon this floor 
and the floor of .the other House? 

Before doing so, before placing ourselves in 
a position where we may be nnable to exercise 
all the powers necessary under the existing state 
of things, in my judgment we must provide for 
the safety of this people. If we think that consti- 
tutional amendments are necessary arising from 
the condition in which we have been, it is our 
duty to i^ropose them. If we think that additional 



LIBRfiRY OF CONGRESS 







013 744 483 5 

laws are necessary, it is our duty to pass those 
laws. If we think that it is proper to impose 
conditions — not conditions that would degrade 
or disgrace any State, for when they come back 
they must come on terms of ecpmlity — but if 
we think it is necessary to impose some con- 
ditions even upon these States on their return, 
it is our duty to do that before we admit their 
members to seats on this floor or the floor of 
the other House. 

That was the President's opinion. He under- 
took to tell them that he would have nothing to 
do with theirgovernments unless they made cer- 
tain s])ecific provisions in their new constitu- 
tions. .The President undertook to say, I will not 
leave you to your own action, I will not recognize 
your governments until you abolish slavery, 
until you provide against the payment of the 
rebel debt, and some other things of like de- 
scription. If he had the right to do it, have 
not we ? If he could impose conditions with 
reference to what he would do, have we not the 
I^ower to impose conditions with reference to 
what we are called upon to do ? But, sir, while 
I say this, I would not consent that a condition 
should be imposed on one of these States that 
would in any way degrade it, or of which there 
could be just ground of complaint that it was not 
left on an equality with all the other States, 
because that would be a matter of complaint 
forever and always. 

Mr. President, I have thus stated the notions 
that I entertain on the subject of reconstruc- 
tion, as it is called. As I said before, it was 
my intention to say something on that subject 
long ago, but I found no fitting opportunity 
hitherto. Perhaps I had better not have under- 
taken to express these views to-day In connec- 
tion with the resolution which I rose to discuss ; 
but with the question, whether or not the Sen- 
ate has power over this subject, and whether 
or not the House of Representatives has power 
over this subject, the question of the condition 
of these States and the relations which they 
now hold to the Union Is intimately connected. 
My judgment is, that we hold the power over 
that whole subject in our own hands, that it is 
our duty to hold it in our own hands, and to 
regard It as a matter of tJie most intense inter- 
est to the whole people, involving the good of 
the whole people, calling for our most careful 
consideration, and to be adjudged without pas- 
sion, without temper, without any of that feel- 
ing which may be supposed to have arisen out 
of the unexampled state of things through 
which we have passed. 



LIBRARY OF CONGRESS 



013 744 483 5 



W>^.*,*.mm».»t»<*j*- 



